Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010046202019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1691 OF 2019
IN
LONG CAUSE SUIT NO. 2336 OF 2017
(CNR NO: MHCC010046202019 )
Shri. Rajendra Keshav Patade ... Plaintiff
V/s.
Mumbai Municipal Corporation & Ors. ...Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 18/02/2022
Adv. Poonam Pal for the plaintiff.
Adv. Mrs. Meena Dhuri for the defendant/MCGM.
Adv. Suraj Kudalkar for defendant No.3 to 5.
ORAL ORDER
1. This Notice of Motion is taken out by defendant No. 3 to 5
to set aside 'No Written Statement Order' and permission to file Written
Statement.
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2. The plaintiff has filed reply to the same and contested the
notice of motion.
3. Perused the Notice of Motion and reply of the plaintiff.
Heard advocates for the parties at the length.
4. It is contended by the defendants No. 3 to 5 that it was
unable to file its Written Statement as it was not affirmed due to ill
health of defendant No.4 and on the fixed date advocate was busy in
another court. In consequence, the then court has passed no written
statement order. Therefore, delay was caused for Written Statement.
5. The defendants No. 3 to 5 intend to file their Written
Statement and affidavit in reply by getting set aside hearing without
reply and Written Statement order passed against it. The question is
whether these defendants should be allowed to file their written
statement and affidavit in reply at this stage.
6. The procedure as to limit for filing written statement and
affidavitinreply and consequences of not filing the same are given in
Order 8 of Civil Procedure Code. Order 8 Rule 10 of the C.P.C., has laid
down a procedure about passing of a decree in favour of the plaintiffs, if
defendants fail to file his written statement. This discretion is not
exercised by the court in favour of the plaintiffs for the reason of failure
of defendants to file their written statement.
7. In this background, if the defendants are allowed to file
their written statement by setting aside no written statement order
passed against him, it will not cause any prejudice to either plaintiff or
to the overall hearing of this suit. If these defendants no.3 to 5 are
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allowed to file written statement and if the suit decreed in favour of the
plaintiffs, it would be a decree on merit. On the other hand, if the
defendants are not allowed to file their written statement, it would
result into a decree which would be technically exparte decree.
Therefore, this court is of the opinion that evidence of the plaintiff has
not commenced and therefore, defendants should be allowed to file
their written statement and affidavit in order to enable this court to
decide the suit on merit.
8. There is one more reasonable important point that the
written statement is filed after the period of 90 days of the service of
summons/notice. The written statement along with this application is
being filed after the period of 90 days. However, this court is of the
opinion that for the stated reasons the defendants are to be allowed to
file their written statement. Filing of written statement by these
defendants beyond the prescribed period of time framed has not caused
any serious prejudice to the plaintiff. The inconvenience caused to the
plaintiff can be compensated by saddling cost of Rs.5,000/ on the
defendants no.3 to 5 and it shall be deposited with District Legal Aid
Services Authority on or before next date. Hence, the order.
ORDER
1. The Notice of Motion No.1691/2019 is allowed .
2. No Written Statement Order passed against the defendants
No.3 to 5 is set aside and they are granted permission to
file their written statement in the interest of justice subject
to the deposit of cost of Rs.5,000/which shall be deposited
with District Legal Aid Services Authority on or before next
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4 N/M No.1691/2019
date.
3. The Notice of Motion No.1691/2019 is disposed off.
(Smt. S.G.Shaikh)
Date18/02/2022 Judge,City Civil Court,
Gr.Mumbai.
Dictated on : 18/02/2022
Typed on : 18/02/2022
Signed on : 18/02/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/02/2022 05.20 p.m. ( Prasad S. Pednekar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
18/02/2022
JUDGMENT/ORDER signed by
P.O.on
18/02/2022
JUDGMENT/ORDER uploaded on 18/02/2022
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